R v Trebeck

Case [2022] QCA 107

SUPREME COURT OF QUEENSLAND

CITATION:

R v Trebeck [2022] QCA 107

PARTIES:

R
v
TREBECK, Robert Ian
(appellant)

FILE NO/S:

CA No 22 of 2020
SC No 8 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Toowoomba – Date of Conviction: 28 May 2019 (Lyons SJA)

DELIVERED ON:

17 June 2022

DELIVERED AT:

Brisbane

HEARING DATE:

14 March 2022

JUDGES:

Mullins JA and Flanagan and Davis JJ

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where the appellant admitted that the deceased was unlawfully killed – where the only controversy in the trial was whether it was the appellant who unlawfully killed the deceased – where the appellant’s and respondent’s counsel framed the trial against the possibility of a different person murdering the deceased – where the jury had to exclude the hypothesis that another person killed the deceased – whether it was reasonably open to the jury, upon the whole of the evidence, to be satisfied beyond reasonable doubt that the appellant was guilty of murder

Criminal Code (Qld), s 668E(1)

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, cited
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited
R v Clapham[2017] QCA 99, cited
R v Conn; R v Conn; Ex parte Attorney-General (Qld)[2017] QCA 220, cited
R v Schafer[2017] QCA 208, cited

COUNSEL:

S R Lewis with L A Ygoa-McKeown for the appellant (pro bono)
P J McCarthy QC for the respondent

SOLICITORS:

No appearance for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. MULLINS JA:  I agree with Flanagan J.

  2. FLANAGAN J:  The appellant appeals his conviction of murder, which was recorded in the Supreme Court at Toowoomba on 28 May 2019 after a 12-day jury trial before Lyons SJA.

  3. The deceased, Alexis Jeffery, was known to the appellant.  Her time of death was estimated to be between 3:30 to 5:15 on 16 March 2014.  Her jeans had been wrapped around her throat which stopped blood or air getting to her brain and required the application of significant force for approximately three to five minutes.  The police located the deceased’s jeans in a hedge approximately 150 metres from her body, which was found on the bank of the Macintyre River, at the back of the Cultural Centre in Goondiwindi.

  4. The appellant appeals his conviction on the ground that the verdict was unreasonable.  The appellant submits that the jury, having regard to the evidence, could not have been satisfied that the prosecution had excluded beyond reasonable doubt the reasonable hypothesis that another person, Daniel Rowsell, killed the deceased.

  5. The issue raised by the ground of appeal is whether this Court, as an appellate court, is of the opinion that the verdict of…

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AGLC
R v Trebeck [2022] QCA 107
Case
[2022] QCA 107
Decision Date

CaseChat Overview and Summary

In the matter of R v Trebeck, the court was required to determine whether the verdict of the jury was unreasonable or insupportable in light of the evidence presented. The appellant admitted to the unlawful killing of the deceased but contested whether he was the one who carried out the act. The trial proceedings hinged on the possibility that someone other than the appellant could have been responsible for the murder, with both parties’ counsel framing the trial around this hypothesis. The central issue before the court was whether it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of murder, considering the entirety of the evidence.

The court examined the evidence meticulously, including testimonies from the appellant and other witnesses, to assess the reasonableness of the jury's verdict. The appellant presented a detailed account of the events leading up to and during the night of the murder, providing context for his interactions with the deceased and other individuals present. The court acknowledged the appellant's extensive contact with the deceased prior to the incident, as evidenced by phone records and text messages. The court also noted the circumstances surrounding the night of the murder, including the appellant's exchange with the deceased and a third party, Mr Rowsell.

Upon reviewing the evidence, the court found that it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was the perpetrator of the murder. The jury was entitled to weigh the evidence presented by the appellant and other witnesses, including the appellant's direct evidence that Mr Rowsell struck the deceased instead of him. The court held that the evidence, when viewed in its entirety, did not render the verdict unreasonable. Consequently, the appeal was dismissed, affirming the jury's decision.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In the present case, the prosecution called Rowsell as a witness and the appellant gave evidence. The jury, in reaching its verdict, therefore had the advantage of seeing and hearing both Rowsell and the appellant give evidence.The appellant’s evidence The first time the appellant met the deceased was the night of 15 March 2014. Prior to this meeting, however, the appellant had been in telephone contact with the deceased from 1 March 2014 to 17 March 2014. The appellant over this period was living with his then fiancée Ms Larkins. He described their relationship as having deteriorated. Exhibit 54, which is the telephone records of the appellant, shows that there was a total of 162 calls or SMS messages from the appellant to the deceased for that period and 150 calls or SMS messages from the deceased to the appellant. During the period Friday, 14 March 2014 to Sunday, 16 March 2014 there was a total of 80 SMS messages sent by the appellant to the deceased, in addition to three telephone calls, and 69 SMS messages from the deceased to the appellant, with an additional six telephone calls. Some of the text messages were able to be retrieved, and are referred to below. On 15 March 2014 the appellant and Ms Larkins spent the day with friends, Mr and Mrs Styles. They attended a party of a friend’s wife and at the conclusion of the party the appellant decided to go out without his fiancée. He went to change for that purpose but could not locate his black leather shoes and instead had to wear his reef boots. After leaving the party the appellant unsuccessfully tried to gain access to the Royal Hotel. He then went to the Queensland Hotel where he gained access through the rear. In the course of the night of 15 March 2014 the appellant had been exchanging Facebook messages with the deceased: at 21:53 the deceased texted the appellant: Come to the QL. At 21:54 the appellant replied: Hi, sexy. I’m in town. At 21:56 he messaged: I will soon, sexy. At 22:01 the deceased messaged: Queensland pub. Text me when you get here. At 22:30 the appellant messaged: Okay, sexy. I’m on my way there. At 22:50 the appellant messaged: Okay. Give me 20. Okay, sexy. Eventually the appellant met the deceased face-to-face for the first time at the Queensland Hotel. The appellant encountered Rowsell at the hotel. After the hotel closed at approximately 1:00, CCTV footage shows a number of people gathered on the footpath on the Pratten Street side of the hotel. While outside the appellant approached the deceased but noticed that Rowsell was standing by her side with a couple of other people. The appellant felt some hostility from Rowsell, who was unsuccessfully attempting to give the deceased a lift home. The deceased and the appellant then commenced walking along Marshall Street, stopping at the public toilets before continuing. It was at this stage that Rowsell drove up in his car and came over to the deceased, asking her a few times if she required a lift home. When she refused Rowsell took $20 from his pocket and threw it in the deceased’s lap and then walked away saying words to the effect, “Get a taxi then”. The deceased gave the appellant this $20 and he returned it to Rowsell. While this was happening the deceased continued to walk along Marshall Street. Rowsell gave the appellant a lift to where the deceased had walked to. Rowsell persisted in asking the deceased whether she wanted a lift. CCTV footage shows the deceased waving her hands in the air. According to the appellant she said words to Rowsell to the effect, “Fuck off, leave me alone”.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The real issue for the jury was whether they were satisfied beyond reasonable doubt that it was the appellant who killed the deceased.Consideration Upon a consideration of the evidence at trial it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the murder of the deceased. It follows that it was also reasonably open to the jury to be satisfied that the prosecution had excluded beyond reasonable doubt the hypothesis that Rowsell killed the deceased. The appellant submits that the verdict was unreasonable because the jury could not have been satisfied beyond a reasonable doubt to exclude the hypothesis that Rowsell killed the deceased having regard to the following evidence:“(a)Mr Rowsell was seen with the deceased on the night prior to the killing and he had an interest in her.(b)Mr Rowsell and the deceased hugged on the night prior to the killing but his DNA was not found on the deceased.(c)Mr Rowsell lied about taking methamphetamine.(d)Mr Rowsell was sending text messages to friends and had a desire to meet up with women. He gave evidence that he had stopped his car to send a message at 4.11am. There was a gap in his phone activity from 4.26 to 5.06am.(e)Mr Rowsell did not have an alibi. There was no evidence excluding Mr Rowsell returning to Goondiwindi. Mr Rowsell lied about having breakfast with his father at 8.00am on 16 March 2014.(f)Natasha Williams gave unchallenged evidence of a dark blue or grey older model Commodore, driving erratically a block away from the crime scene shortly after 4.00am on 16 March 2014. Mr Rowsell was driving a dark blue or grey older model Commodore on 16 March 2014.(g)The appellant gave direct evidence that Mr Rowsell tried to kick the appellant from the appellant’s right-hand side while the appellant was leaning over the top of the deceased but struck the deceased in the face instead. This is consistent with the injury observed to the deceased’s medial orbit of the left socket.(h)The appellant gave evidence that he ran away and left the deceased with Mr Rowsell. That was the last time he saw the deceased alive.”[11][11]Appellant’s Outline (conviction), [34]. This evidence, when considered in the context of the whole of the evidence, does not render the verdict unreasonable on the basis that it was unreasonable to exclude Rowsell as the killer beyond reasonable doubt. The jury was entitled to accept or reject such parts of the evidence of any witness, including that of the appellant and Rowsell as it thought fit. There were important distinctions between the cases in relation to the appellant and Rowsell. The first concerns the nature and significance of the lies said to be told by them. Accepting for present purposes that Rowsell lied about using methamphetamine and the time at which he had breakfast with his father on 16 March 2014, neither of these lies directly connect Rowsell to the murder. This is to be contrasted with the lies which the prosecution allege were told by the appellant.